2008 BCSC 907 Dhanoa v. Hui

Before: The Honourable Mr. Justice Meiklem

Reasons for Judgment

Counsel for the Plaintiff	M.S. Randhawa
Counsel for the Defendants	J.L. Zacharias
Date and Place of Trial/Hearing:	May 2, 2008
	Vancouver, B.C.

[1] The defendants initiated this application for a summary assessment under Rule 18A of the plaintiff’s claim for damages sustained in a December 6, 2004 motor vehicle collision. The trial of this action was set for August 2008. The respondent plaintiff’s submissions on this application were directed principally to whether this action was suitable to summary disposition because of conflict in the expert medical evidence tendered by the parties.

[2] The plaintiff is an infant, born on April 20, 1993. He was born with cerebral palsy and is confined to a wheelchair because of that condition. He attends grade 9 in Surrey. The accident occurred while he was being driven by his mother to attend a school field trip, when their van was struck on the driver’s side by another vehicle in an intersection. Liability is admitted.

[3] The plaintiff’s affidavit describes the impact as causing his body to move to the left, with his head hitting the window and his left leg and hip hitting the inside of the door of the van. He says that following the accident he felt pain in his jaw and bruising of his lips, then pain in his neck and upper back. He also experienced headaches. He attended the medical clinic of the family physician, Dr. Sanghe, on the date of the accident, and was prescribed Advil for pain.

[4] He was subsequently assessed by Dr. Cecil Hershler on three occasions: March 10, 2005, April 3, 2006 and September 20, 2007. Dr. Hershler provided medical reports after each of those assessments. The plaintiff was medically examined on behalf of the defendants by Dr. Kenneth C. Hill on December 11, 2007, and there is one medical report from Dr. Hill dated December 12, 2007.

[5] The plaintiff has produced no medical evidence from the family physician, Dr. Sanghe, but both of the experts reviewed the clinical records of Dr. Sanghe and the massage therapy clinic to which the plaintiff was referred by Dr. Sanghe.

[6] The defendants submit that there should be an adverse inference drawn due to the plaintiff’s failure to produce any medical evidence from his treating physician, Dr. Sanghe. I note that the medical evidence that is available is from two experts who have reviewed the medical records of Dr. Sanghe. In my view, the adverse inference goes no further than that Dr. Sanghe’s testimony would have added nothing to the plaintiff’s case.

[7] In my view, this case is suitable for disposition by way of summary trial. Although there are differences between the opinions of Dr. Hershler and Dr. Hill, these doctors have different specialities. That fact alone accounts for some of the difference in their approach. There are also areas of agreement which, together with the plaintiff’s own evidence, as supported by the affidavit evidence from his mother, enables the court to assess the nature of the plaintiff’s injuries.

[8] Dr. Hershler is a specialist in physical medicine and rehabilitation. In his medical report dated March 10, 2005, he opined as follows:

Diagnosis: The history and physical findings are consistent with muscle injuries. The muscles affected are in the neck and shoulders and over the jaws. The muscles have become tight and tender. Based on the history, it is likely that these muscle injuries were caused by the accident on December 6, 2004. There does not appear to be any damage to the temporomandibular joint itself and the cervical spine has been spared. Muscle tightness and muscle pain is the most likely cause for the headaches and the jaw pain.

Prognosis: The prognosis for a full recovery is guarded. Jiwan continues to complain of pain in the jaw and headaches. The headaches are referred from the muscle injuries to the neck. From a therapeutic point of view, I would encourage him to continue to have massage therapy once a week. The massage therapist should work on the neck, shoulders and jaw. It is possible that Jiwan will experience a slight increase in pain after massage but then, as time passes, he will notice more improvement. I would recommend one treatment a week for a further six months. A reassessment in nine to twelve months should enable me to be more definite about prognosis. However, I expect Jiwan to notice further improvement over time. It is likely that Jiwan will continue to complain of symptoms for at least another year.

In his addendum medical report dated April 3, 2006, Dr. Hershler opines as follows:

Diagnosis: This is unchanged. The history and physical findings remain consistent with muscle injuries. The major muscles affected are across the shoulders and around the temporomandibular joints.

Prognosis: It is likely that Jiwan will continue to experience slow improvement. During this period of time, I would recommend that he still have massage treatments (two per month) and that, in between massage treatments, he apply heat to his shoulders and jaw and try and stretch muscles (mouth opening and closing, shoulder movements). His care givers could assist him in this regard as well.

In his addendum medical report dated September 20, 2007, Dr. Hershler states as follows:

Diagnosis: The diagnosis remains unchanged from my earlier reports. The history and physical findings are consistent with muscular injuries. The major muscles affected are those overlying the temporomandibular joints. There is some evidence of improvement in the neck and shoulder muscles.

Prognosis: It is my opinion that Jiwan will continue to experience slow improvement. I would recommend that he apply heat to his jaw muscles prior to teeth cleaning or eating. Massage therapy is helpful, and I would recommend that he maintain treatments (24 sessions annually) for at least another two years. The fact that he is experiencing tightness in the jaw and neck is a result of the injuries to his muscles sustained in the motor vehicle accident on December 6, 2004. The condition is more prolonged given his pre-existing cerebral palsy.

[9] Dr. Hill, an orthopaedic surgeon, examined the plaintiff on December 11, 2007. His December 12, 2007 report recounts that the plaintiff stated that he experienced pain in his jaw and pain in his neck following the accident, and:

Apparently these symptoms have persisted over time but have improved. He states that he still has some difficulty chewing. He is also aware of occasional discomfort in his neck and upper back area and he attends a massage therapist once every 2 to 3 weeks for treatment of this.

[10] The concluding portions of Dr. Hill’s report read as follows:

DIAGNOSIS

1. Contusion mandible.

2. Soft tissue injuries cervical and upper thoracic spine.

3. Cerebral palsy.

Jiwan Dhanoa has largely recovered from the injuries which he sustained resulting from the motor vehicle accident of December 6, 2004. The injuries have not resulted in permanency with respect to his musculoskeletal system. It is anticipated that he will continue to improve in the foreseeable future and be left with no disability specific to his injuries. He requires no further therapeutic modalities with respect to management and if so, they arise from his cerebral palsy condition and not from his injuries. There does not appear to be any functional overlay with regard to his recovery other than he appears to be somewhat pain-focussed with respect to residual complaints without any significant objective findings. In short, it is my view that his complaints will be self-resolving. I would anticipate this to be the case over the next 3 to 6 months. This may be impacted by the fact that he has a condition which affects his musculoskeletal system and may protract any symptomatology somewhat longer for this reason. On the other hand, there is no evidence that he has sustained injuries which will lead to permanency. There should be no limit with respect to occupational activities that can be introduced to him and that he is capable of handling within the realm of his disability arising from cerebral palsy.

I think overall that the prognosis is excellent and that Jiwan Dhanoa will resume his activities within the limitation imposed on him by the pre-traumatic state.

[11] Thus, it appears that both specialists agree that the plaintiff suffered soft tissue injuries to muscles of the jaw area and the neck and shoulders, and that recovery has been protracted because of his cerebral palsy condition. The major differences in the opinions are that Dr. Hill expected that the plaintiff’s complaints would resolve over three to six months following December 12, 2007, and in September 2007, Dr. Hershler opined that the plaintiff would continue to experience slow improvement and recommended massage therapy for at least another two years. Dr. Hill was of the view that the plaintiff required no further therapeutic modalities.

[12] The defendants’ position on awards of the various heads of damage is that the plaintiff should receive an award in the range of $20,000.00 for non-pecuniary damages. This argument is supported by reference to the cases of Stedel v. Telford, 2000 BCSC 145, Dogra v. Thakore, 2001 BCSC 834 and Ingram v. Rosario, 2002 BCSC 1695.

[13] The plaintiff suggests that the appropriate non-pecuniary damage award is $60,000.00, and refers me to the cases of Krell v. Saari, 2003 BCSC 699, Leblanc v. Morgan, 2004 BCSC 171, Tardiff v. Toews, 2004 BCSC 1009, Ching v. McCabe, 2006 BCSC 1589 and Delgado v. Parra, 2002 BCSC 1344. All of the plaintiff’s case authorities award $50,000.00 for non-pecuniary damages, save and except Leblanc, which awarded $80,000.00.

[14] The plaintiff’s evidence set out in his affidavit sworn May 1, 2008, is that prior to the accident, for a period of at least one year, he was not undergoing any physical therapy, nor was he taking any medication for pain. He states that following the accident he experienced headaches on a daily basis for approximately eighteen months, although the intensity started to gradually decrease three months after the accident. These headaches lasted from thirty minutes to two hours. After the first eighteen months, he experienced headaches approximately every second day until approximately August of 2007, and since then his headaches have become very sporadic. He says that he has been experiencing neck and upper back pain on a daily basis since the accident, although the intensity has decreased. He says that he continues to experience pain daily in his jaw, and he feels it particularly when he attempts to brush his teeth or eat hard food such as apples. His jaw pain also creates difficulty in sleeping on his left side. His neck and upper back pain, which he continues to experience, limits his endurance at sitting at a computer and studying. He used to enjoy practising throwing a baseball at a wall at home, and his neck and upper back pain prevents him from picking up a baseball.

[15] The plaintiff states in paragraph 33 of his affidavit:

As a person with cerebral palsy, I had learnt to live with a disability. The symptoms of pain that I continue to experience after the accident limit me more than I already was and I find it disheartening and difficult to cope with these ongoing symptoms.

[16] The point that the plaintiff makes with these comments is, of course, that even relatively modest limitations resulting from his injuries are more significant to him because of the limitations already imposed by his cerebral palsy condition.

[17] It is, of course, common practice to refer the court to other comparable cases not only to assist the court, but to effect a degree of consistency and uniformity which should result in awards that are fair to plaintiffs and defendants. In this case, I must say that the cases that I have been referred to by the defendants are more comparable to the plaintiff’s injuries than those cited by the plaintiff and reflect, in my view, a more objective approach. By way of example, the case of Dogra, cited by the defendants, involved a $20,000.00 non-pecuniary damage award, where the court described the plaintiff’s situation as follows:

21. I conclude that, as a result of the accident, the plaintiff suffered moderate soft tissue injuries that totally disabled her for six and a half months. After that time, she continued to experience periodic pain and discomfort which has diminished to the present time. She suffers from periodic discomfort and is more vulnerable to re-injury.

[18] By comparison, in the Leblanc case cited by the plaintiff, the court found that as a direct result of the accident, the plaintiff had suffered from dizziness and vertigo likely related to a disturbance within the vestibular system, and this injury had persisted and “has made the Plaintiff’s life a living hell.” The court further commented at ¶17:

The injuries sustained as a result of the accident had a catastrophic effect on the Plaintiff. He was totally disabled for approximately nine months immediately following the accident.

[19] The court also held that the plaintiff was not likely to achieve a full recovery.

[20] Of the plaintiff in Tardiff, the court said at ¶36:

This 37-year-old woman continues to have and will continue to have lower back pain that will lessen the enjoyment of every aspect of her life for the rest of her life. The medical experts agree that she will not get better, and there is a possibility that she will get worse.

[21] In Delgado, the plaintiff sought general damages in the range of $45,000.00 to $80,000.00 based upon a conclusion that the plaintiff had suffered a permanent partial disability. The plaintiff suffered a moderate to severe neck injury, and moderately severe strain of the upper and lower back. There was also soft tissue injuries to the knees and thighs and contusion injury to the chest, shoulders, right clavicle, right elbow and temporomandibular joints. She was able to return to full-time work after four months, but with considerable difficulty. She had post-traumatic stress. Her symptoms continued to flare-up four years after the accident and she continued to take medication for pain. She wore an oral appliance and received physiotherapy and chiropractic treatment.

[22] I find that while the plaintiff has not yet fully recovered from his soft tissue injuries sustained in the accident, because his recovery has been prolonged by his pre-existing cerebral palsy condition, he has suffered no permanent injury or disability, and suffered no period of total disability. Although his complaints have continued past the three to six months following December 12, 2007, that Dr. Hill anticipated, Dr. Hill did qualify that estimate with reference to the possible effect that cerebral palsy may have. Clearly, Dr. Hershler considered it a possibility that the plaintiff could experience symptoms for a further two years, but the clear implication is that his symptoms will diminish over that time.

[23] I assess non-pecuniary damages in the amount of $25,000.00.

[24] The plaintiff puts forth a claim for special damages in the amount of $4,324.00, comprised of $2,324.00 in massage therapy expenses to-date, $500.00 in medication expenses estimated and an estimated $500.00 in transportation expenses, as well as $1,000.00 as an “in trust” claim for his mother’s care in driving him to medical appointments, massage therapy appointments and applying heat and massage at home. The massage therapy expenses are supported by a statement of account, and although the other expenses are not supported by receipts or documentary evidence, they are, I find, reasonable estimates and I award special damages in the amount claimed of $4,324.00. Although the defendants took the position that the massage therapy expenses were excessive, the plaintiff’s evidence is that they were incurred only for injuries related to the accident and I accept that evidence.

[25] In respect of future care costs, the defendants take the position that the plaintiff is entitled to none, on the basis that the use of massage therapy has declined to the point where the plaintiff only used it three times in the last five months of 2007, and only once in 2008. The plaintiff’s mother has deposed that she still treats the plaintiff’s pain with Tylenol occasionally and, in my view, there is a real possibility that further massage therapy, as recommended by Dr. Hershler, will become necessary. I award an amount for cost of future care of $1,000.00.

[26] The parties are at liberty to apply if they are unable to agree on the court order interest applicable or on costs, which follow the result unless there are relevant circumstances unknown to the court at this time.

“I.C. Meiklem J.”
MEIKLEM J.

Citation:	*Dhanoa v. Hui,*
	2008 BCSC 907